Rowsell -v- Ware [2007] NSWLEC 796

Rowsell -v- Ware [2007] NSWLEC 796

The Court dismissed the application because, after inspecting the tree, it found the Ironbark Eucalyptus was healthy and structurally sound, did not present a threat to persons or property, and had not caused, was not causing, and was not likely to cause injury to persons or property in the near future. The statutory test in section 10 was not satisfied, and the section 12 considerations also favoured retention because the tree contributed to the local ecosystem, biodiversity, public amenity and the character of the residential area. Leaf litter and twigs were ordinary maintenance matters and did not justify removal.

Jurisdiction
Australia
Judgment Date
27 November 2007
Procedural Posture
Application Under Section 6 of the Trees (disputes Between Neighbours) Act 2006 to Remove a Tree / Judgment After Hearing
Outcome
Application dismissed
Legal Topics
['application to Remove Tree' 'tree Safety' 'property Damage' 'neighbouring Land' 'public Amenity' 'dividing Fences']
['land and Environment' 'trees Disputes Between Neighbours'] ['application to Remove Tree' 'tree Safety' 'property Damage' 'neighbouring Land' 'public Amenity' 'dividing Fences']

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Procedural Posture

Application Under Section 6 of the Trees (disputes Between Neighbours) Act 2006 to Remove a Tree / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the subject Ironbark Eucalyptus had caused, was causing, or was likely to cause injury to a person or property within the meaning of section 10 of the Trees (Disputes between Neighbours) Act 2006.' 'Whether removal of the tree was justified to allow a secure rear boundary fence to be erected.' 'Whether the matters in section 12 of the Trees (Disputes between Neighbours) Act 2006, including biodiversity, landscape value and public amenity, weighed against removal of the tree.' 'Whether leaf litter, twigs and debris from the tree provided a basis for ordering removal.']

Ratio Decidendi

The Court dismissed the application because, after inspecting the tree, it found the Ironbark Eucalyptus was healthy and structurally sound, did not present a threat to persons or property, and had not caused, was not causing, and was not likely to cause injury to persons or property in the near future. The statutory test in section 10 was not satisfied, and the section 12 considerations also favoured retention because the tree contributed to the local ecosystem, biodiversity, public amenity and the character of the residential area. Leaf litter and twigs were ordinary maintenance matters and did not justify removal.

Court Disposition

Application dismissed

Orders

  • ['The application to remove the tree is dismissed.']